Steve August 27, 2020
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Youth Pride, gay news, Washington Blade
The Trump administration elimination data collection on LGBTQ youth in foster care (Washington Blade file photo by Joe Tresh)

The Trump administration is facing a new lawsuit from a coalition of LGBTQ, foster care and Native American groups over removing requirements from the child welfare reporting system to identify tribal children and lesbian, gay and bisexual youth in foster care.

The 78-page complaint, which was filed Thursday in the U.S. District Court of the Northern District of California, San Francisco Division, challenges the rule change the Department of Health & Human Services and the Administration for Children & Families made final in May to rescind authority of foster care workers to ask about the sexual orientation and tribal identities of youth.

Plaintiffs in the lawsuit are True Colors, Inc., Ark of Freedom Alliance and the Detroit-area Ruth Ellis Center, which seek to serve LGBTQ youth as well as the California Tribal Families Coalition, Yurok Tribe, Cherokee Nation and Facing Foster Care in Alaska.

Patrick Comerford, executive director of True Colors, Inc., said in a statement LGBTQ youth are “are overrepresented in the system and are often navigating structures that are ill-equipped to respond to them in culturally competent ways.”

“AFCARS data collection is vital in making sure these young people are not invisible and is a critical part of making sure they have a system that can meet their specific needs,” Comerford added.

An estimated 430,000 youths are removed from their homes and placed in foster care every year. Although LGBTQ people represent approximately 5 to 10 percent of the general U.S. population, they account for more than 20 percent of female youth and more than 10 percent of male youth in the child welfare system, the lawsuit says.

In 2016 during the final month of the Obama administration, HHS issued a rule that expanding the data collection requirements for these children which included a requirement for case workers to reported data on the sexual orientation youths in foster care age 14 and older. (A question on gender identity wasn’t instituted as part of the 2016 rule.)

Additionally, the rule change required data reporting how state child welfare agencies are adhering to the Indian Child Welfare Act’s requirements, such as attempting to place Native American children with relatives or tribal members.

Chuck Hoskin Jr., principal chief of the Cherokee Nation, said in a statement requiring states to report that data “ensures that our Cherokee children are protected by ICWA in state court systems.”

“We were disappointed when the ICWA reporting elements were removed from the regulation and are hopeful that they will be restored through this case,” Hoskin Jr. said. “The Cherokee Nation will continue to lead the way when it comes to defending ICWA in order to protect our children.”

Upon reversing this rule in 2020, the Trump administration cited complaints on identifying LGBTQ youth from one-third of states, who reportedly “expressed concerns with the data elements around sexual orientation and recommended they be removed.”

“States commented that if this information is important to decisions affecting the child, the information will be in the case file; however, when it is not pertinent, states said that asking for sexual orientation may be perceived as intrusive and worrisome to those who have experienced trauma and discrimination as a result of gender identity or sexual orientation,” the rule says. “This would be a mandatory conversation a worker must have in order to complete the data elements. Mandating such a conversation may be contraindicated based on a child’s history of abuse or neglect.”

(In response, the complaint says “ACF had previously considered and rejected this exact contention” because “a response from youth was voluntary and that guidelines existed for asking such questions sensitively and safely.”)

According to the rule change, children in foster care who are American Indian/Alaskan Native made up less than one percent of the children in foster care and the data collection system “can be streamlined in a way that is responsive to all concerned and in a way that can balance the need for updated data with reducing the burden” on relevant agencies.

Data collection are whether state agencies made inquiries on whether a youth is Native Americans and their tribal membership was retained, the rule says.

The lawsuit was filed by the LGBTQ legal group Lambda Legal, Michigan State University College of Law’s Indian Law Clinic and Democracy Forward, which seeks to expose corruption in the executive branch of government.

Anne Harkavy, executive director of Democracy Forward, said in statement the rule change demonstrates “the Trump administration’s contempt for lawful, evidence-based policymaking has hurt vulnerable population.”

“We’ve filed suit to help prevent the Trump administration from keeping American Indian and Alaska Native and LGBTQ+ foster youth in the shadows,” Harkavy added.

The lawsuit challenges the rule change on the basis that it was “arbitrary and capricious” under the Administrative Procedure Act, which requires the U.S. government to make reasoned analysis and consider costs, benefits and outside comments when making rule changes.

The Washington Blade has placed a request in with the Department of Health & Human Services and the Justice Department seeking comment on the lawsuit.

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